Citation Nr: 0730157
Decision Date: 09/25/07 Archive Date: 10/01/07
DOCKET NO. 05-17 571A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for back condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The veteran had unverified active duty from February 1979 to
February 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
FINDING OF FACT
A back disability was not present in service or until many
years thereafter, and is not shown to be related to service
or to an incident of service origin.
CONCLUSION OF LAW
A back condition was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Entitlement to Service Connection
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1131; 38 C.F.R. § 3.303. The law also provides that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Generally, to establish service connection, there must be (1)
medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. See Hickson
v. West, 12 Vet. App. 247, 253 (1999).
The veteran seeks service connection for a back condition on
the basis that the disorder had its onset during his period
of active duty. The veteran's service medical records
indicate that his back was normal upon examination for
induction in September 1978. The veteran's service medical
records further indicate that he was treated for low back
pain while in service in October 1980 (the veteran complained
of back pain for the past two days and stated that the pain
bothered him on and off for the past six months; the
assessment was low back pain secondary to spasms) and January
1981 (the veteran reported a two year history of back pain
and stated that his back hurt every now and then; the
assessment was low back spasms). The veteran elected not to
have a separation examination at the time of discharge.
In August 2006 the veteran was examined by private
physicians, Drs. S and E, who diagnosed him as having "mild
levoscoliosis; L4-5 slight anterior listhesis with mild
posterior disc bulge, eccentric to right; asymetric right
facet hypertrophy contribut[ing] to mild to moderate right
foraminal stenosis and . . . mild canal stenosis; advanced
discogenic disease and spondylosis at L5-S1; and a
circumferential disc osteophyte and bilateral facet
hypertrophy produc[ing] moderate biforaminal stenosis."
It is undisputed that the veteran was seen in service for low
back pain and was not diagnosed at that time with a chronic
disease. If is further undisputed that he is currently
diagnosed with a back condition. In light of this, the Board
will focus on the evidence that relates to whether the
condition is related to service or an incident of service
origin. See Newhouse v. Nicholson, No. 06-7302 (Fed. Cir.
Aug. 10, 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000).
The record is silent as to symptoms of a back condition
between service and the diagnosis letter of August 2006. The
physician did not opine as to whether the condition was
related to the veteran's low back pain in service. Without
any medical evidence of etiology or other evidence of
continuity of symptomatology no link between the veteran's in
service low back pain and current back condition can be
established and the claim for service connection for back
condition must be denied. In that regard, the United States
Court of Appeals for the Federal Circuit has determined that
a significant lapse in time between service and post-service
medical treatment may be considered as part of the analysis
of a service connection claim. Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000). In this case, there is a lapse of
more than 20 years between service and post-service
treatment, according to the record. This is evidence that
goes against the veteran's claim.
In reaching the determination that service connection is
denied, the Board does not question the veteran's sincerity
that his low back disability is related to service. As a lay
person, however, he is not competent to establish a medical
diagnosis or show a medical etiology merely by his own
assertions because such matters require medical expertise.
See 38 C.F.R. § 3.159(a)(1) (2007) (Competent medical
evidence means evidence provided by a person who is qualified
through education, training or experience to offer medical
diagnoses, statements or opinions); see also Duenas v.
Principi, 18 Vet. App. 512, 520 (2004); see also Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). Because the
veteran is not professionally qualified to offer a diagnosis
or suggest a possible medical etiology, the Board finds that
the preponderance of the evidence is against the claim,
service connection must be denied.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and
codified as amended at 5102, 5103, 5106 and 5107 (West 2002))
redefined VA's duty to assist a claimant in the development
of a claim. Guidelines for the implementation of the VCAA
that amended VA regulations were published in the Federal
Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)). The Board finds that VA has satisfied its
duties to notify and assist, and that all relevant evidence
has been obtained regarding the veteran's back condition
claim.
The VCAA and its implementing regulations set forth VA's
amended duties to notify and assist a claimant in developing
information and evidence necessary to substantiate a claim.
With regard to the former duty, under 38 U.S.C.A. § 5103,
upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006);
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his
possession pertaining to the claim in accordance with
38 C.F.R. § 3.159(b)(1). See Kent v. Nicholson, 20 Vet.
App. 1, 8 (2006); Pelegrini v. Principi, 18 Vet. App. 112,
121 (2004). Here, the Board finds that VA has satisfied its
duty to notify the veteran of the information necessary to
substantiate his claims by way of the RO's January 2005
"VCAA" letter, which sets forth the criteria for service
connection, and which predates the March 2005 decision on
appeal.
VCAA notice requirements also apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess v. Nicholson, 19 Vet. App. 473
(2006). Because the preponderance of the evidence is against
the veteran's claim of service connection for a back
condition, the Board finds that he has not been prejudiced by
the lack of this notice since any issues regarding an
evaluation of the degree of disability and an appropriate
effective date are moot.
As to VA's duty to assist, the Board observes that VA has
associated with the claims folder the veteran's service
medical records. No post-service records of VA care have
been identified or indicated by the veteran. The Board
acknowledges that, to date, VA has neither afforded the
veteran an examination nor solicited a medical opinion as to
the onset and/or etiology of his back condition. Under
38 U.S.C.A. § 5103A(d)(2), VA must provide a medical
examination and/or obtain a medical opinion when there is:
(1) competent evidence that the veteran has a current
disability (or persistent or recurrent symptoms of a
disability); (2) evidence establishing that he suffered an
event, injury or disease in service or has a disease or
symptoms of a disease within a specified presumptive period;
(3) an indication the current disability or symptoms may be
associated with service; and (4) there is not sufficient
medical evidence to make a decision. See Wells v. Principi,
326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20
Vet. App. 79 (2006).
In this case, the veteran does not report suffering from a
back condition between the end of his service and the
physician's report of August 2006 and there is no evidence
suggesting that he has. As such, and in the absence of any
suggestion the current disability is related to service, VA
is not required to afford him a medical examination and/or
obtain a medical opinion as to the etiology or onset of his
back condition. In light of the above, the Board finds that
no additional assistance is required to fulfill VA's duty to
assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001).
ORDER
Entitlement to service connection for back condition is
denied.
____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs